Judgment No. 3916
1. WHO shall pay the complainant material damages in the amount of 20,000 United States dollars.
2. WHO shall pay the complainant moral damages in the amount of 25,000 United States dollars.
3. WHO shall also pay the complainant costs in the amount of 5,000 United States dollars.
4. All other claims are dismissed.
The complainant challenges the decision to terminate his fixed-term appointment pursuant to the abolition of his post.
complaint allowed; fixed-term; abolition of post; termination of employment
The Tribunal recalls that it has consistently held that the principle of equal treatment requires, on the one hand, that officials in identical or similar situations be subject to the same rules and, on the other, that officials in dissimilar situations be governed by different rules defined so as to take account of this dissimilarity (see, for example, Judgments 1990, under 7, 2194, under 6(a), 2313, under 5, 3029, under 14, or 3787, under 3). With regard to reassignment, WHO Headquarters staff are not in an identical or similar situation to non-Headquarters staff.
ILOAT Judgment(s): 1990, 2194, 2313, 3029, 3787
Staff Rule 1050.6 states that “[t]he reassignment period will end within six months from its commencement”. In this case, the complainant was notified of the abolition of his post on 17 January 2012 and the decision stating that the reassignment process had been unsuccessful was issued on 30 August 2012, seven and a half months later. Thus, the Organization implicitly extended the reassignment period. It cannot reasonably contend that this period ended on 18 July 2012, given that the complainant was not informed of the termination of his appointment until 30 August 2012. The Tribunal therefore considers that WHO failed to observe the time limit for the complainant’s reassignment pursuant to the Staff Rules and thus violated the principle of tu patere legem quam ipse fecisti (see, for example, Judgment 2170, under 14). The complainant is therefore entitled to compensation for moral injury.
ILOAT Judgment(s): 2170
moral injury; time limit; patere legem; reassignment
[T]he file shows that while WHO established a reassignment committee – namely, the Global Reassignment Committee – with a view to reassigning the staff members whose posts had been abolished, there is no evidence that the Committee met with the complainant. The Tribunal’s case law has it that administrative bodies have a duty to explore all existing reassignment options with the person in question (see Judgments 2902, under 14, 3439, under 9, and 3755, under 9). In this case, the complainant had no opportunity to participate in the reassignment process. The Tribunal therefore considers that the Organization breached its obligations.
ILOAT Judgment(s): 2902, 3439, 3755
duty to inform; abolition of post; reassignment
Pursuant to Staff Rule 1050.2, “[w]hen a post held by a staff member with a continuing appointment, or by a staff member who has served on a fixed-term appointment for a continuous and uninterrupted period of five years or more, is abolished or comes to an end, reasonable efforts shall be made to reassign the staff member occupying that post, in accordance with procedures established by the Director-General [...]”. In this case, it was therefore incumbent on the Organization to make every effort to reassign the complainant, who had been employed by WHO without interruption from 2004 to 2012, when his appointment was terminated. The Tribunal notes that by creating new posts to be filled solely through local recruitment, the Organization, through its own actions, limited the reassignment options of AFRO administrative officers, including the complainant, whose posts were abolished. In so doing, it restricted the opportunities for reassignment whereas it was incumbent on it to seek or expand them. WHO therefore failed to abide by its own rules.
patere legem; abolition of post; reassignment
The Tribunal notes that the record, including the report of the HBA, shows that the GRC recommended that the complainant not be reassigned because his retirement date was less than three years away. Furthermore, it rejected his candidature for a two-year appointment without explanation. Therefore, WHO breached the duty of care it owed to the complainant.
reassignment; duty of care